180 N.Y. 512 | NY | 1904
In disposing of this case we did not overlook our decision in the case of Gmaehle v. Rosenberg (
There was no defect in the method adopted of lowering the tank bottom by jack screws, or if there were such defect, it was not the proximate cause of the accident. The difficulty occurred when in the course of lowering the bottom by these screws the plate assumed a cant or slant. Thereupon Murphy, the foreman, sent the deceased to place blocks underneath the plate. Here, if at all, was the negligence of Murphy. The *513
plan adopted by defendants did not contemplate the presence of any workmen beneath the tank bottom. Murphy was not the alterego of the master, but merely a foreman or superintendent, for whose negligence, apart from any statute, the defendants — under a line of authorities in this court, of which Loughlin v.State of N.Y. (
The motion for a reargument should be denied, with ten dollars costs.
GRAY, BARTLETT, HAIGHT, MARTIN, VANN and WERNER, JJ., concur.
Motion denied.